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CASE NO.: Appeal (crl.)  568-569 of 2004

PETITIONER: Gowrishankara Swamigalu

RESPONDENT: State of Karnataka & Anr

DATE OF JUDGMENT: 05/03/2008

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NOs. 568-569 OF 2004

S.B. SINHA,  J :

1.      A Mutt known as Sri Siddaganga Mutt (for short "Mutt") is  situated in the State of Kerala.  Appellant was a ’junior Swamiji’  therein.  He was declared as the successor of the ’senior Swamiji’ on  or about 21.05.1975.  Disputes and differences are said to have arisen  between the two Swamijis.  Police protection was given to the  appellant.  Both of them, however, purported to have signed an  agreement on 13.05.1986.  It was, however, not implemented.   

       The ’Mutt’ used to run a school.  Respondent No. 2 herein was  admitted in the VIIIth standard in the said school of the Mutt.  At the  material time, he was reading in the IXth standard therein.   On 18.07.1986 at about 8.30 a.m., the appellant allegedly  through PW \026 2 Palaksha and Gopinath called him to his office.  The  office was partitioned, one part of it was converted into a bed room.   After Respondent No. 2 entered in the office, he was asked to rub  lemons on his body.  He allegedly had stripped prior thereto.   Respondent No. 2 was also asked to take his clothes off.   

2.      Respondent No. 2 alleged that he was subjected to unnatural  offence by the appellant.  His clothes, anus and panche (lungi) got  soiled.  He was given a sum of Rs. 10/- and asked not to tell the same  to anybody else.  The said activity of the appellant is said to have  continued upto 23.07.1986.  He was every time offered some money.   In total a sum of Rs. 75/- was paid to him.   

       He allegedly came back to his house with his brother on  28.07.1986.  He gave the dirty clothes for washing to his mother.  His  mother found sticky substances in the lungi.  When accosted, he  allegedly told her about the indecent behaviour of the appellant.  PW- 8 Bhagawan Singh, the maternal uncle of Respondent No. 2 (brother  of PW-4 mother Dushyanthi) at that time was also present.  The  victim was allegedly persuaded to go back to the school.  He came  back to the school on 3.08.1986.  PW-9 Shivakumar and Natraj were  said to have been asked by the appellant to bring him again to his  office.  He declined to come.  He allegedly made a complaint to the  Senior Swamiji as regards the incident who assured him to look  thereinto and asked him not to make any complaint, the prestige of the  Mutt being involved.  However, no action was allegedly taken.   He thereafter lodged a First Information Report on or about  29.08.1986 at about 6.30 p.m.  Investigation in the matter took a long  time.  A spot mahazar (Ex. P2) was drawn up only on 30.08.1986.  On

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31.08.1986, the statement of PW-4 was recorded.  The statement of  PW-2 Palaksha was recorded on 17.09.1986.  The statement of  Gopinath was taken on 23.11.1986.  However, he was not examined  in court.  Statement of PW-9 Shivakumar, another student was  recorded on 2.12.1986.  The statement of PW-8 Bhagawan Singh was  taken on 31.08.1987.  Chargesheet in the case was filed only on  9.05.1988.  Keeping in view the aforementioned fact, the Trial Court  initially discharged the appellant by an order dated 19.02.1990 which,  however, was set aside by the High Court by an order dated 3.09.1992  with the direction to dispose of the matter on merits.  

3.      The trial started in March, 1996.  In the mean time, the  appellant was removed from the Mutt.  Immediately, thereafter, he  filed a suit on 27.05.1988.  The said suit is still pending.   

       Names of sixteen witnesses were cited in the chargesheet.   However, only thirteen of them were examined before the learned  Trial Judge.  PW-1 is the complainant.  PW-2 Palaksha was the  student who along with Gopinath allegedly was asked by the appellant  to bring Respondent No. 2 to his office.  Gopinath who was a material  witness as also the Senior Swamiji who could throw enough light in  regard to the complaint made by Respondent No. 2 to him, for reasons  best known to the prosecution, were not examined.  PW-2 although is  not an eye-witness but when the offence was being committed, he  allegedly knew as to what was going on as both he and Gopinath were  inside the room, although doors were closed and the place where the  bed was placed in the office room was divided only by a plywood  partition.  

4.      PW-3 Dr. V. Bangaraswami medically examined Respondent  No. 2 on 29.08.1986.  PW-4 Dushyanthi is the mother of Respondent  No. 2.  Shivakumariah PW-5 and Dharanesh PW-6 are witnesses to  mahazar.  PW-7 Dr. Parashuram is a surgeon.  PW-8 Bhagawan Singh  is the maternal uncle of Respondent No. 2.  PW-9 Shivkumar and  Natraj are other students who were asked by the appellant to call  Respondent No. 2.  Natraj, however, was not examined.  PW-10 B.  Raghavendra Rao proved the report of the forensic laboratory.  PWs.  11, 12 and 13 were the investigating officers.   

5.      The learned Trial Judge recorded a judgment of acquittal  opining:

"32.    Thus, in view of the above said  discussion, I am considering the evidence of  the PWs 1, 4, 8 and 9 and also the medical  evidence, namely, PWs 3, 7 and 10 and also  the evidence of the investigating agency, it  is clear that, there is a long gap in recording  the statement of the witnesses by the  Investigating Agency.  As observed earlier,  the evidence of the PW1 is not supported by  any medical evidence and the alleged  version of PW1 regarding his visit to  Bangalore is contradictory, when it is  compared with the evidence of the PWs 4  and 8 and there is a delay in filing the  complaint, and the fact that, the evidence of  the PW1 he was called through the PW2 and  CW3, becomes improbable, looking to the  facts of the case, and there are improbable  circumstances in the case, and as the  evidence of the PW1 is not supported by the  medical evidence, and as such, his evidence  is not reliable, and there is abnormal and  extraordinary delay in filing the complaint,

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and the accused is not examined by any  doctor in this case and the circumstantial  evidence does not corroborate, the evidence  of the PW1, and they contradicted to him i.e.  PW1’s version and in view of the above said  discussion, a doubt arises about the  prosecution case and as such, the accused is  entitled for the benefit of doubt."   

6.      The State preferred an appeal thereagainst.  Respondent No. 2  also filed a revision application,   the maintainability whereof was in  question.  Both the criminal appeal and the criminal revision  application were taken up for hearing together.   

7.      A disturbing feature that occurred before the High Court may  be noticed by us at this stage.  Although the allegation against the  appellant was commission of a heinous offence, an attempt was made  by the court to get the civil disputes between the appellant and the  senior Swamiji settled.   

       The High Court in its judgment recorded that the appellant used  to come in an air-conditioned car and would hold press meetings  although the case was pending.  He attributed the said conduct on the  appellant relying on or on the basis of a statement made by the public  prosecutor.  The Public prosecutor, however, filed a memo before the  court denying and disputing the said statements attributed to him.   Curiously enough, the High Court directed the appellant to remain  present on all the dates of hearing.  Only because on one of the dates  of hearing, he was not present, serious note thereof was taken and his  purported conduct, as noticed hereinbefore, was commented upon.           Appellant was found guilty of commission of the said offence  by the High Court.  The judgment of acquittal was reversed.   A long hearing was given for imposition of sentence.  State and  Respondent No. 2 prayed for imposing of life sentence as also a fine  of Rs.50 lakhs on him.  Ten years’ rigorous imprisonment and a fine  of Rs. 25 lakhs, however, was imposed stating that the revision  application has been allowed in part.

8.      Mr. Sushil Kumar, learned senior counsel appearing on behalf  of the appellant, would submit:

(i)     The delay in lodging of the First Information Report having  not been explained satisfactorily, no reliance can be placed  thereupon.  The First Information Report is in two parts and  the second part thereof would clearly show improvement  made by PW-1 in his statements made in the first part.   (ii)    A bare perusal of the First Information Report would show  that the same was drafted by a person having good  knowledge of law.   (iii)   The medical evidence adduced by the prosecution clearly  negates the charges. (iv)    The chance discovery of the offence by the mother and  maternal uncle of Respondent No.2 is wholly concocted, as  it is wholly unnatural that the lungi would not be washed for  a period of about 10 days although he had only two pairs of  lungi and two pairs of school uniforms.   (v)     According to PW-4 and PW-8, Respondent No. 2 returned  home only on 18.08.1986 and remained in the house for  about 20 days which belies the story as narrated in the First  Information Report.   (vi)    The High Court committed a serious error in reversing the  judgment of acquittal without considering the parameters  therefor.  

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9.      Mr. Sanjay R. Hegde, learned counsel appearing on behalf of  the State and Mr. M.N. Rao, learned counsel appearing on behalf of  Respondent No. 2, on the other hand, would submit:

(i)     the offence alleged being a heinous one performed on a  child of 13 years which has ruined the life of a boy must be  viewed with all seriousness by this court.    (ii)    In a case of this nature, it is wholly unlikely that a young  boy would lodge a false First Information Report,  particularly, when he was advised by his mother and  maternal uncle to inform the police only when an attempt  was made to repeat the offence.   (iii)   The statement of Respondent No. 2 having not only been  corroborated by the other students of the school, being PWs.  2 and 9, also stand corroborated by the evidence of his  mother and uncle, PWs 4 and 8, respectively.   (iv)    Respondent No. 2 has admitted his handwriting in the sheet  of the First Information Report which was marked as Exhibit  P1.  The latter part of the First Information Report which  was marked as Exhibit P1B is really a statement under  Section 161 of the Code of Criminal Procedure and, thus,  there is no reason why the same cannot be relied upon. (v)     Absence of medical evidence in regard to commission of  offence is not conclusive as evidence of injury cannot be  found as the Respondent No.2 was examined after a period  of 40 days.  Furthermore, injuries suffered by him which  might have been minor in nature might have been healed up  in ordinary course.   (vi)    Statement of PW-4 that Respondent No. 2 came back to his  house immediately before Rakshbandhan day need not be  taken seriously by the court as she, having been hailing from  a lower strata of the society might not have been able to  remember the exact date after a period of 10 years.   

10.     Delay in lodging of a First Information Report although by  itself may not be a ground to disbelieve the entire prosecution case,  but each case must be judged on its own facts.  If the story of PW-1 is  to be accepted at its face value, the court may not take serious notice  of delay in lodging the First Information Report.  But, for the said  purpose, the entire facts and circumstances of this case must be taken  note of.  The offence was said to have been repeated for seven days at  about the same time.  It is wholly unlikely that a student of a school of  the Mutt, where compulsorily prayer has to be offered on a clean cloth  and as apart from two pairs of lungi and two pairs of school uniforms  he did not have anything else, had been putting on the same lungi at  least for about seven days while visiting the appellant at his call.

11.     From the statements of PW-4, it appears that according to  Respondent No. 2, his mother used to come to the school for washing  the clothes once in a week or so.  At the same time, soap had been  provided to Respondent No. 2 for washing his clothes.  This conduct  on the part of Respondent No. 2 throws serious doubts to the whole  story.  If Respondent No. 2 had returned to school on 3.08.1986 and  attempts were made by the appellant immediately thereafter to send  for him for repeating the commission of the same offence, there was  no reason why the First Information Report was not lodged  immediately.   

       Even PW-4 has categorically denied and disputed that she had  made any statement before the investigating officer after the First  Information Report was lodged on 31.08.1986.  According to her, as  also PW-8, Respondent No. 2 came back to the house only on the  Rakshbandhan day and stayed there for 20 days.  He had to be  persuaded to return to school.  PW-8 came with them.  It was he who  used to run the house; the husband of PW-4 for all practical purposes

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having nothing to do with the affairs of the house.  The husband of  PW-4 has also not been examined.   PW-8 was attached to the Mutt.  It was he, who was  instrumental for admission of the boy in the Mutt.  He knew the  Administrator.  He did not meet the appellant to make enquiries.  He  did not meet the Senior Swamiji to lodge a complaint.  He did not  even meet the Administrator.   PW-4 was not an illiterate lade.  She had studied upto IXth  standard.  She had been working in a school as an Aaya.  Her sister is  a teacher in a school.  It is, therefore, unlikely that no step would be  taken by the guardians when they came to know about the incident.

12.     It is against natural human conduct that such an act would be  committed at 8 O’clock in the morning and that too continuously for  seven days.   The site plan shows that the office of the Senior Swamiji is only  5 feet away from the office of the appellant.  There was a store room  and also a room for sitting of the other staff members attached to the  room.  Even if PW-2 and Gopinath had been asked to bring  Respondent No. 2 with them, it is against all human conduct that after  closing the door they would be asked to be in the room and except  seeing the act with their own eyes, for all intent and purport they  would know what had been happening in the room.  Despite the same,  according to PW-2, when they came out of the room, Respondent No.  2 was asked about what had happened.  He allegedly stated  thereabout.

13.     According to the complainant, PW-2 and Gopinath called him  only for the first day and not thereafter.  How, then on all the other  days, he went to the office room of the appellant in the same way is  not explained.  PW-2, Gopinath as also PW-9 were not studying with  him in the same class.  They used to stay in the third floor of the  hostel; whereas Respondent No. 2 used to stay in the ground floor  thereof.  

14.     A bare perusal of the First Information Report itself shows that  it cannot be in the handwriting of a student studying in Class IX.  It  was in very good handwriting.  It was written systematically.  There  was no mistake.  There was no hesitation in writing.  It was absolutely  neat and clean.  The contents of the First Information Report clearly  demonstrate that the same has been drafted by a person who is well  versed in legal language.  Immediately, a purported statement was  taken after the First Information report was lodged that there exists  some improvement therein is not in dispute.  A further statement was  recorded that he had himself written the First Information Report.   The subsequent statement may not be a part of the First Information  Report being a statement under Section 161 of the Code; but the  defence is entitled to show that improvements have been made therein  vis-‘-vis the allegations made in the First Information Report.

15.     PW-1 made the following statement in his deposition before the  Investigating Officer:  "I have myself written this application in my  own handwriting.  As stated in my  application, the boys who took me to  Gowrishankar Swamiji closed the door and  stood inside only.  After this incident I did  not inform it to anybody.  The senior  Swamiji expelled Palaksha and Gopinath  who used to live with me in the Mutt.  When  Gowrishankar Swamiji asked me to remove  my clothes, I was wearing one Green colour  stripped underwear, one white panche, one  baniyan and turmeric colour checked towel.   My mother has washed the said clothes.  

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From my home town, when I returned to the  Mutt on 3-8-86, Shivakumar and Natraj,  boys of middle school came to me and told  me that Gowrishankar Swamiji is called me.   I was scared and I did not go.  I informed  that the junior Swamiji had done such a  thing to the senior Swamiji in the evening at  about 8-30 p.m.  I was afraid that some one  will beat me therefore, I did not give any  report about it.  Today, I came to know that  Siddalingappa and Hebbak Mahadev are  searching for me and realizing that I cannot  allow it to continue like this.  I have given  my written application."

16.     We have noticed hereinbefore that despite the fact that  commission of such a heinous crime was reported to the police  authorities, how tardy the investigation was.   

       PW-4 in her deposition completely denied to have made any  statement before the police officer on 31.08.1986.  The reason is not  very far to seek.  Her attention was drawn to her previous statements  where she had alleged that her son had mentioned about the incidents  on 18.08.1986 and left the house on 28.08.1986.  When her attention  was drawn to the other statements made by her before the  Investigating Officer, she stated:

"\005I do not know if I have stated before the  police in terms of D1 and D2.  Before the  police I have not mentioned that I informed  my brother Bhagvan Singh that the children  have dirtied the clothes.  Before the police I  have not mentioned that Bhagvan Singh  enquired my son Deepak Singh after coming  back from playing as to why he had dirtied  his clothes.  Further, I have not mentioned to  the police that when my son Deepak Singh  told to Bhagvan Singh, I was present there.   My son went back five days after  coming\005"   

17.     PW-8 who, as noticed hereinbefore, was examined by the  police more than one year after the occurrence, viz., 31.08.1987, in his  cross-examination, stated:

"\005After about 2 months after they came for  Rakhi festival, my statement was recorded  by police.  I might have informed the police  that we celebrate Rakshabandhan festival on  19-8-86.  I have stated that on 18-8-86 the  children came to my sister’s house from the  Mutt for celebrating the festival.  Two days  thereafter, my sister had washed the clothes  of the children.  It is not correct to say that I  have not mentioned in the police statement  that my sister asked Deepak Singh why his  clothes were so dirty.  My sister asked both  the children why they had dirtied the clothes  so much.  At that time both the children  were in the house.  From 18-8-86 both the  children stayed for about 20 days in my  sister’s house in Bangalore.  After 20 days, I  encouraged the children and left them in the  Mutt.  I have not seen Palaksha and

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Gopinath.  Even when I went to leave the  children at the Mutt, I did not meet the  accused and ask him why he was having  such immoral intercourse with children and  how can he do such a thing.  I did not go and  meet the Senior Swamiji and inform him  that your junior Swamiji is doing such a  thing\005"   

18.     Whereas according to PWs 4 and 8, they came to know about  the incident on or about 18.08.1986 and Respondent No. 2 and his  brother having stayed in the house for 20 days, it remains a mystery  how First Information Report could be lodged on 29.08.1986.   

19.     PW-3 Dr. V. Bangaraswami in his evidence stated:

"All the tissues around the anus are hard and  rough.  At the time of answering the calls of  nature, the extra skin will be expanded.   Immediately after it will come to original  status.  By examination I found that boy was  not habitually used for anal intercourse.  If  there is continuous act of intercourse for  about a week or even 2,3 days we can find  out as whether he had any intercourse or  not."

20.     Mr. Hegde relied on a decision of the Orissa High Court in  Mihir Alias Bhikari Charan Sahu v. State, Opp. Party [1992 (98)  Cr.LJ 488], wherein Ejaj Ahmad’s Sexual Offences and Modi’s  Medical Jurisprudence and Toxicology have been extensively quoted,  to contend that lacerations are likely to disappear if the examination is  made after two to three days and  nature of injuries would also depend  upon several factors.

21.     When an expert categorically ruled out the commission of the  unnatural offence having regard to his expertise, it was obligatory on  the part of the prosecution to draw his attention to the said authorities  so as to enable him to furnish an explanation.  It may be true that  absence of medical offence by itself may not be a crucial factor in all  cases, but, the same has to be taken into consideration as a relevant  factor when other evidences point towards the innocence of the  appellant.

22.     Why in a case of this nature, filing of chargesheet was unduly  delayed and could be filed only in May, 1988, i.e., only after the  dispute between Senior Swamiji and the appellant crystalised, is  beyond anybody’s comprehension.  The High Court merely relied  upon the evidence of PW-1.  His statements were taken as gospel  truth.  Only on the basis thereof, all other factors pointing out the  discrepancies in the prosecution case were lost sight of.   

23.     A large number of irrelevant factors including the rate of  conviction, legalisation of sodomy in other countries had been taken  into consideration by the High Court.  Appellant for no reason was  condemned in the clearest possible terms.  He was accused to be  coming to the High Court in an air-conditioned car and holding press  conferences which was denied and disputed by the public prosecutor.   He was also branded as a habitual offender.  Taking of such irrelevant  factors clearly demonstrates how the mind of the learned Judges of the  High Court stood influenced not only for the purpose of reversing a  judgment of acquittal but also for imposition of sentence.  If the High  Court was clear in its mind that it was dealing with a criminal case  and that too the offence is a serious one, we fail to understand why it

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had made endeavours to mediate in the internal disputes of the Mutt  and for that purpose held sittings in chamber.  We also fail to  understand as to why the presence of the appellant on each day of  hearing was insisted upon and his absence had been adversely  commented upon.

24.     Mr. Hegde relied upon a recent decision of this Court in B.C.  Deva @ Dyava v. State of Karantaka [2007 (9) SCALE 338] to  contend that in a case involving sexual abuse the testimony of the  victim should ordinarily be believed.  The factual matrix involved  therein was absolutely different as not only the prosecutrix was found  to be a consenting party, but immediately after the incident she rang to  her mother for the purpose of disclosing the incident and she felt so  depressed and humiliated as to lead her to the extreme step of ending  her life by jumping in a water tank.  It was in the aforementioned  situation opined: "12. Having carefully gone through the  evidence of the prosecutrix, we find no  plausible and justifiable reasons whatsoever  to disbelieve and discard her testimony. The  prosecutrix is a trust-worthy witness and her  evidence cannot be brushed aside on the  above-noted flimsy plea raised by the  accused."

       The question as to whether the witnesses in criminal cases  irrespective of the nature of offence should be fully relied upon or not  would depend upon the fact of each case.  There cannot be any  precedent on fact.

25.     Reliance has been placed on State of Kerala v. Kurissum  Moottil Antony [(2007) 1 SCC 627] wherein it was held that in a case  of sexual assault whether corroboration is necessary or not is again a  question in regard whereto no hard and fast rule can be laid down.  In  the aforementioned case, the victim was a girl of 10 years.  The  accused trespassed into her house when she was alone and committed  an unnatural offence.  The testimony of the girl found corroboration  from the medical evidence.  It was observed: "7. An accused cannot cling to a fossil  formula and insist on corroborative  evidence, even if taken as a whole, the case  spoken to by the victim strikes a judicial  mind as probable.  Judicial response to  human rights cannot be blunted by legal  jugglery\005"           In any event, keeping in view the peculiar fact situation  obtaining herein, we are of the opinion that this is one of the rarest of  rare cases where a deeper scrutiny was necessary particularly when  the Trial Court had recorded a judgment of acquittal upon assigning  sufficient and cogent reasons and wherewith we agree.

26.     Reference to State of Punjab v. Gurmit Singh and Others  [(1996) 2 SCC 384] does not take us any further.  Therein it was  observed:   "\005The courts, therefore, shoulder a great  responsibility while trying an accused on  charges of rape. They must deal with such  cases with utmost sensitivity. The courts  should examine the broader probabilities of  a case and not get swayed by minor  contradictions or insignificant discrepancies  in the statement of the prosecutrix, which  are not of a fatal nature, to throw out an

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otherwise reliable prosecution case. If  evidence of the prosecutrix inspires  confidence, it must be relied upon without  seeking corroboration of her statement in  material particulars. If for some reason the  court finds it difficult to place implicit  reliance on her testimony, it may look for  evidence which may lend assurance to her  testimony, short of corroboration required in  the case of an accomplice. The testimony of  the prosecutrix must be appreciated in the  background of the entire case and the trial  court must be alive to its responsibility and  be sensitive while dealing with cases  involving sexual molestations."

27.     The High Court also completely lost sight of the parameters of  its jurisdiction to reverse a judgment of acquittal.  It is not a case  where only one view was possible.  We are not unmindful that some  mistakes had also been committed by the learned Sessions Judge  which had been pointed out by Mr. M.N. Rao in the following terms: (i)     The PW7 has also stated in his evidence that "no  abnormality is detected as per Ex. P3".  This goes to show  that the evidence of the PW1 and the evidence of PWs 3, 7  and 10 are taken together, it is clear that the evidence of the  PW1 is not corroborated by the medical evidence. (ii)    It is the defence of the accused that the PWs 1 and 2 and  CW3 and PW9 are not at all residing in the Mutt and they  are created against the accused. (iii)   The PW1 in the cross has admitted at page no. 19 that  against him the J.C. cases in J.C. No. 86/86, 59/87, 60/87,  61/87, 89/87 and CC 4350/90 were filed by the  Kyathasandra P.S.

       but, then the High Court could have made an endeavour to  arrive at its independent findings.         Our approach to the case is not different as we have made all  endeavours to appreciate the testimony of the victim in the  background of the entire case.

28.     We have ourselves gone through the materials on records very  carefully and are clearly of the opinion that the learned Trial Judge  was correct in its view.   

29.     We may at this juncture notice a few precedents operating in  the field.

       In Jagdish & Anr. v. State of Madhya Pradesh [2007 (11)  SCALE 213], this Court held:

"12.    The High Court while dealing with an  appeal from a judgment of acquittal was,  thus, required to meet the aforementioned  reasonings of the learned Trial Judge.  There  cannot be any doubt whatsoever that  irrespective of the fact that the High Court  was dealing with a judgment of acquittal, it  was open to it to re-appreciate the materials  brought on records by the parties, but it is a  well-settled principle of law that where two  views are possible, the High Court would  not ordinarily interfere with the judgment of  acquittal. [See Rattan Lal v. State of Jammu  & Kashmir \026 2007 (5) SCALE 472].   14.     It is unfortunate that the High Court

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while arriving at the aforementioned  conclusion did not pose unto itself the right  question.  In the event, it intended to arrive  at a finding different from the one arrived at  by the Trial Court, it was obligatory on its  part to analyze the materials on record  independently.  The High Court was also  required to meet the reasoning of the learned  Trial Judge.  If the learned Trial Judge upon  appreciation of the evidence arrived at a  conclusion that the time of occurrence  disclosed in the First Information Report  was not correct inasmuch whereas the  occurrence is said to have taken place at  08.00 a.m. but in fact it took place much  prior thereto, it could not be opined that the  First Information Report  was lodged within  an hour of the incident\005"

       It was noticed:

"17.    Yet again in Kallu alias Masih and  Others v. State of M.P. [(2006) 10 SCC  313], this Court opined : "8. While deciding an appeal against  acquittal, the power of the Appellate Court  is no less than the power exercised while  hearing appeals against conviction. In both  types of appeals, the power exists to review  the entire evidence. However, one  significant difference is that an order of  acquittal will not be interfered with, by an  appellate court, where the judgment of the  trial court is based on evidence and the view  taken is reasonable and plausible. It will not  reverse the decision of the trial court merely  because a different view is possible. The  appellate court will also bear in mind that  there is a presumption of innocence in  favour of the accused and the accused is  entitled to get the benefit of any doubt.  Further if it decides to interfere, it should  assign reasons for differing with the decision  of the trial court." [See also Rattanlal (supra) and Ramappa  Halappa Pujar & Others v. State of  Karnataka \026 2007 (6) SCALE 206]."         [See also Chandrappa & Ors. v. State of Karnataka 2007 (3)  SCALE 90 and Haji Khan v. State of U.P. [(2005) 13 SCC 353]         Recently in Abdul Gafur & Ors. v. The State of Assam [2007  (13) SCALE 801], a Bench of this Court held: "10. The accused persons are not strangers  and were practically neighbours of the  informant and his family. The High Court  noted that there was no intention to falsely  implicate accused persons because of enmity  and there was no reason as to why dignity of  two young girls would be put at stake by  alleging rape. It is to be noted that in fact  rape was alleged but the Trial Court found  that there was no material to substantiate the  plea of rape. The evidence is totally  inconsistent and lacks credence. The High  Court’s observations were clearly based on  surmises and contrary to the factual

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scenario. The High Court has noted that the  evidence of PWs. 1,2,3,5 & 8 stand fully  corroborated by the medical evidence.  Significantly, on consideration of the  evidence of PW 4, it is clear that the  evidence of this witness is clearly contrary  to the medical evidence. To add to the  confusion, it is noted that the High Court  recorded as finding that appellant Abdul  Gafur was absconding. As a matter of fact  the evidence of Investigating Officer (in  short the ’I.O’) shows that he had arrested  Abdul Gafur on the date the First  Information Report (in short the ’FIR’) was  lodged. Unfortunately the High Court has  merely referred to certain conclusions of the  Trial court without analyzing the evidence  and various submissions made by the  appellants. To add to the vulnerability of the  prosecution version, the FIR was lodged  long after the incident and in fact law was  already set on motion after the telephonic  message had been received.  11. The aforesaid infirmities in the  background of admitted animosity between  the parties renders the prosecution version  unacceptable. The Trial Court and the High  Court did not analyse the evidence correctly  and acted on mere surmises and conjectures.  That being so, the appellants deserve to be  acquitted, which we direct."                  The High Court unfortunately failed to bear in mind the  aforementioned legal principles.  The High Court misdirected itself at  various stages.  It was wholly unfair to the appellant.   30.     For the reasons aforementioned, the appeal is allowed.  The  judgment of conviction and sentence passed by the High Court is set  aside and the judgment of acquittal passed by the Trial Court is  restored.  Appellant is set at liberty forthwith if not required in  connection with any other case.